Robb: Obama exploits Clean Air Act

Critics of the Obama administration’s proposed carbon rule for electricity generation are calling it another extra-legal power grab.

They aren’t entirely wrong. But they aren’t entirely right, either.

This isn’t a case of the administration acting contrary to clear statutory law, as with moving various Obamacare implementation dates. Nor is it a case of the administration inventing law out of whole cloth, such as the amnesty program for those brought to this country illegally as children.

In 2007, the U.S. Supreme Court held that greenhouse gases, notably carbon dioxide, were an air pollutant under the Clean Air Act. And that the Environmental Protection Agency had no choice but to determine whether they endangered public health or welfare. And if it determined that they did, to regulate motor vehicle sources of it.

The EPA did all of that. And, according to the EPA, under the Clean Air Act, that has knock-on consequences for regulating greenhouse gases from stationary sources, such as power plants. Once an air pollutant is determined to endanger public health or welfare, EPA is legally obligated to regulate it through all of its various programs, goes the argument.

This is what the lawyers call a colorable argument, something that can reasonably be asserted. There is a case pending before the U.S. Supreme Court right now to determine whether it is, indeed, a correct interpretation.

So, give the administration this: The courts have held that greenhouse gases are, at least to some degree, able to be regulated by the EPA under the broad language of the Clean Air Act.

However, the latest power plant regulation, irrespective of whether the courts ultimately conclude it is legally permissible, is a power grab that undermines democratic governance.

The regulation uses a catch-all afterthought in the act to radically restructure how electricity is produced throughout the country.

Section 111(d) of the act basically says the EPA can require states to submit plans to control pollutants thought to be hazardous that don’t have specific standards that have been issued. Even the EPA acknowledges that the legal authority to use this section to regulate carbon dioxide is “ambiguous.” But it is using the provision anyway, and in an unprecedented way.

The EPA doesn’t propose to regulate carbon emissions from specific power plants. Instead, it has identified what it believes is a reasonable reduction in the carbon dioxide emitted per unit of electricity produced for each state. Each state would be required to come up with a plan to achieve that reduction.

While the administration is stressing the flexibility granted to states, the EPA retains the authority to reject state plans and impose its own.

And the flexibility is, in significant part, illusory. States will have little choice but to phase out, and rather rapidly in some cases, coal-fired generation. And they will have little choice but to enter into regional cap-and-trade programs.

So the Obama administration is exploiting the interstices of the Clean Air Act to impose through regulation on the states a system of regulating carbon emissions a Congress controlled by Democrats refused to adopt for the country as a whole. That’s just not right.

Virtually everyone concedes that the Clean Air Act is poorly designed to regulate greenhouse gases. Even the EPA refuses to use its statutory definition of major sources for greenhouse gas regulation, saying it would sweep in too many businesses and organizations for the agency to handle.